1. This Memorandum is concerned with the Northern
Ireland Assembly (Elections and Periods of Suspension) Bill. It
identifies each provision of the Bill which confers powers for
delegated legislation, and explains in each case why the power
has been taken to make delegated legislation, and the nature and
reason for the procedure selected.

BACKGROUNDAND
PURPOSEOF
BILL

2. The purpose of the Bill is to cancel the poll
for the election of the next Northern Ireland Assembly which was
due to have been held on 29 May 2003, and to provide a mechanism
for setting the date of the next poll. The Bill also contains
consequential provision to deal with the effects of the postponement
taking place after the commencement of the statutory electoral
timetable, including the effects on former members of the devolved
Assembly; and certain matters relating to the lengthening of the
period of dissolution.

3. The Bill follows intensive negotiations between
the UK and Irish Governments and Northern Ireland political parties.
These negotiations were aimed at restoring power to the devolved
institutions in Northern Ireland, which are currently suspended
under the terms of the Northern Ireland Act 2000, and the full
implementation of the Belfast Agreement. The Government's judgment
is that, in the absence of clarity on an end to paramilitary activity
in Northern Ireland, there is not sufficient trust and confidence
among the Northern Ireland parties to permit the restoration of
functioning devolved institutions immediately following a 29 May
election. The postponement is intended to allow the two Governments
to continue efforts to rebuild the trust and confidence necessary
for the restoration of effective devolved institutions.

Clause 1: Election of next Assembly

Power on conferred on: The Secretary of State

Power exercised by: Order made by statutory
instrument

Parliamentary procedure: Laid before parliament
after being made

4. Clause 1 has the effect of cancelling the
election due to have been held on 29 May 2003 and of making provision
for the Secretary of State to specify the date of the poll for
the next election to the Northern Ireland Assembly. Clause 1(2)
substitutes a new subsection (2) in section 31 of the Northern
Ireland Act 1998 ("the 1998 Act")[3].
The new subsection (2) confers power for the Secretary of State
to specify the date of the next election by order. An order under
subsection (2), as substituted, must be made by statutory instrument
and must be laid before Parliament after it is made (section 96(1A)
of the 1998 Act as substituted by clause 1(3)).

5. The power conferred on the Secretary of State
by this clause is a very specific one. The only issue left to
the Secretary of State's discretion is which particular date to
fix. The Secretary of State intends to make an order setting a
date as soon as the Government is satisfied that there is sufficient
trust and confidence among the Northern Ireland political parties
to permit the restoration and functioning of the devolved institutions.
Once this has been achieved the Government would strongly wish
to avoid any further delay in the setting of the election date.
It might, for example, be necessary to set a date extremely quickly
following a sudden political development in Northern Ireland.
The need to set a date at a time when Parliament is not sitting,
so as to allow for an autumn election, is a distinct possibility.
In these special circumstances, the Department considers that
it is appropriate to provide only for the order to be laid before
Parliament after being made.

6. It is the Government's wish to proceed to
an election as soon as the political circumstances in Northern
Ireland allow. It is also the Government's intention that, as
soon as a decision is taken to proceed to elections, there should
be no further room for uncertainty in Northern Ireland that the
election will proceed. In the light of this, the Government has
concluded after careful reflection that it would not be appropriate
to make this power subject to the draft affirmative procedure.
Although such a procedure is often combined with an "urgency
procedure" so as allow action to be taken when Parliament
is not sitting (see, for example, clause 6 below), the Government
considers that it would be damaging to public confidence in Northern
Ireland were the final nature of the election date to be surrounded
by uncertainty during an election campaign (and indeed possibly
even after the election had been held), pending the approval of
the order. Similar considerations apply to the negative resolution
procedure.

Clause 3: Payments in relation to the May Election

Power on conferred on: The Secretary of State

Power exercised by: Administrative scheme

Parliamentary procedure: None

7. This clause does not confer a power to make
delegated legislation as such, but rather a power for the Secretary
of State to make an administrative scheme. It nevertheless is
dealt with here for completeness.

8. Clause 3(1) enables the Secretary of State
to make payments to registered parties and candidates in accordance
with a scheme. This is so as to permit reimbursement in respect
of expenditure they incurred preparing for the cancelled 29 May
2003 election. Clause 3(2) requires the scheme to provide for
payments to registered parties and candidates in relation to campaign
expenditure and election expenses respectively. Clause 3(3) stipulates
the matters which must be covered under the scheme. The Electoral
Commission must submit recommendations to the Secretary of State
for the terms of the scheme (clause 3(5)) and it is expected that
the Commission will consult with the Northern Ireland Parties
before making recommendations to the Secretary of State. The
Secretary of State must either give effect to these recommendations
or make appropriate modifications (Clause 3(6)).

9. The scheme is intended as an administrative
one. As such it is not subject to parliamentary approval but is
to be published in any way which the Secretary of State considers
appropriate (Clause 3(7)). In the light the nature of the scheme,
the requirement for publication and the recommendations to be
given by the Electoral Commission in relation to the scheme, the
Department believes that it is not necessary or appropriate to
provide for formal parliamentary scrutiny.

10. Subsection (6) of clause 5 amends an existing
power, contained in section 1 of the Financial Assistance for
Political Parties Act (Northern Ireland) 2000 (NI c.1) ("FAPPA
2000"). Section 1 provides for the Northern Ireland Assembly
Commission to prepare a scheme for the making of payments to political
parties. The scheme is essentially administrative and is not
delegated legislation as such. FAFPA 2000 contains provisions
as to the laying of the scheme before the Assembly (s 2), but
by virtue of paragraph 7 of the Schedule to the Northern Ireland
Act 2000 those arrangements do not apply when section 1 of that
Act is in force, as it is at present. Clause 5(6) does not confer
a new power, rather it simply amends the vires provided in section
1. It is, however, dealt with here for completeness.

11. While section 1 of the Northern Ireland Act
2000 is in force, the Secretary of State exercises the functions
of the Assembly Commission under section 1 FAPPA 2000. Clause
5(6) amends section 1 to enable the Secretary of State to make
payments to political parties in order to assist them in engaging
in political discussions about a return to devolved government.
This temporary modification would enable the Secretary of State
to provide financial assistance to the parties during the period
of suspension.

12. Clause 5(6) modifies the vires in section
1 which would not currently allow such payments to be made. The
other provisions relating to the scheme are not affected.

13. In the Department's view this temporary modification
of the vires to make a scheme does not make it necessary to alter
the approach of FAPPA 2000 to the nature of the scheme, or to
its scrutiny.

14. Clause 6(1) confers power on the Secretary
of State to make such modifications of enactments as appear to
him to be necessary or expedient in consequence of, or in connection
with, any provision made by or under the Bill. "Enactments"
is defined widely by clause 6(4) to include a provision contained
in an Act, a provision of, or an instrument made under, Northern
Ireland legislation, and a provision of subordinate legislation.
Clause 6(2) provides that an order made Clause 6(1) may modify
the duties of the Chief Electoral Officer for Northern Ireland,
where he is required to perform any duty or function by reference
to a particular date. Clause 6(3) confers power to make supplementary,
incidental or consequential provisions.

15. Clause 6(5) provides that the Order should
be subject to the draft affirmative procedure. Clause 6(6) provides
that the Order is not to be subject to the draft affirmative procedure
if, on the face of the Order, the Secretary of State declares
that he considers it expedient for the order to be made without
approval by resolution of each House of Parliament ("the
urgency procedure"). An Order containing a declaration under
clause 6(6) is subject to the urgency procedure. Clause 6(7) provides
that under the urgency procedure the Order must be laid before
Parliament after being made and ceases to have effect if it is
not approved by a resolution of each House of Parliament within
forty days. The day on which the Order is made marks the beginning
of the forty day period (Clause 6(7)(b)). In calculating the
forty day period, time in which Parliament is dissolved or prorogued
or during which both Houses are adjourned for more than four days
is not to be taken into account (Clause 6(9)). (This is the same
as the procedure applied by section 7 of the Northern Ireland
Act 2000 in respect of a modification order under section 6 of
that Act.)

16. The power in clause 6(1) to make modifications
to legislation, including primary legislation, is a broad one.
It is appropriate for the Bill to provide for a high level of
Parliamentary scrutiny in such a case and that is why the draft
affirmative procedure has been applied. The urgency procedure
is considered necessary as an alternative to allow for a swift
execution of the modification power in the event that modification
becomes necessary at very short notice, or at a time when Parliament
is not sitting. For example, if an election was to be held in
early autumn and modifications were considered necessary to provisions
concerning the duties of the Chief Electoral Officer under the
Representation of the People Act 1983 in relation to the annual
canvass, an Order making the necessary modifications would need
to be made during the Summer recess.

17. In the Department's view the draft affirmative/urgency
procedure provides an appropriate level of parliamentary scrutiny
for an order of this kind.